Now Abolish the Filibuster for Legislation, Too

Much of the commentary on Senate Majority Leader Harry Reid rolling back the filibuster for most presidential appointees has been celebratory, even euphoric. It certainly was a step toward restoring some semblance of "majority rule" to our creaking 200-year-old republic. But commentators seem to forget that the filibuster has been used to sandbag important legislation as well, not just presidential appointments. And that's arguably where the most damage has been done. All sorts of good legislation, supported by a majority of the nation, also enjoyed majority support in the Senate, but Reid was not able to muster 60 out of 100 votes and break GOP-led filibusters.

Firearm background checks: After the horror of Sandy Hook and other massacres, 54 senators supported legislation in April 2013 to institute background checks aimed at stopping would-be buyers who are ineligible to own guns. Polls showed that 90 percent of Americans supported the measure. Yet the bill died because its advocates could not round up the 60 votes needed to avoid a filibuster. President Obama called it a "shameful day for Washington," but it was really a pretty typical day in this era.

Cap-and-trade: One of the top items on Obama's agenda after taking office in 2009 was to implement a cap-and-trade law to cut carbon emissions. In June 2009, the Democrat-controlled House passed a bill, but it stalled in the Senate after failing to garner enough votes to overcome a Republican-led filibuster. In July 2010, Democrats finally abandoned hope of passing legislation in the upper chamber. "In order to pass comprehensive legislation, you have to have 60 votes. To get 60 votes, you've got to have Republicans. As of today, we don't have one Republican," said then-Senator John Kerry.

American Jobs Act: A GOP-led filibuster killed this jobs-and-stimulus bill in October 2011. Fifty-one senators voted in favor of a procedural motion to begin debate on the bill—short of the required 60 votes. The bill was a mix of tax cuts and new spending aimed at spurring job creation. It included $270 billion in payroll-tax cuts and other tax relief, along with $175 billion in new spending on roads, school repairs, and other infrastructure projects, as well as an extension of unemployment benefits and aid to local governments to prevent impending teacher and police layoffs. A majority of senators representing far more than a majority of the American people supported the bill.

Paycheck Fairness Act: The Senate Republican minority blocked passage of the Paycheck Fairness Act in June 2012, with "only" 52 senators voting for the bill and 47 against. The act aimed to decrease the pay gap between women and men by increasing protections for women filing gender-discrimination lawsuits, creating a federal-grant program to improve women's salary-negotiating skills, and rewarding employers who have fair pay practices, among other steps.

Sequestration: In February 2013, a Democratic compromise budget plan would have replaced the sequester with a combination of spending cuts and new revenue from closed tax loopholes. It had Senate majority support but it was shot down by Senate Republicans, with 51 senators voting for and 49 against.

Affordable Care Act: In March 2010, Democrats had to deploy the budget maneuver called “reconciliation” to cut off a Republican filibuster of Obama’s signature healthcare legislation. Though the bill was passed, filibusters, as well as threats of filibusters and other parliamentary tricks, constricted lawmakers' flexibility and contributed to the byzantine final law—which in turn helped to create today's implementation mess.

In each of these cases, Democrats tried and failed to find 60 votes, but there are plenty of other cases where they didn't even try. The way the filibuster works today is that even the threat can stop legislation in its tracks. Because the process takes Senate floor time, the Democratic majority has in recent years preferred to avoid drawn-out confrontations by essentially giving in to threats and moving on to other business. Small wonder that the Senate—and by extension the entire government—has become so paralyzed.

There is one other rarely discussed aspect to all this that illustrates why the Senate today, far from being “the most deliberative body in the world,” is one afflicted by the most perverse form of "minority rule.” Because of the Senate's distorted and malapportioned structure, in which every state has two senators regardless of population (so California's 38 million citizens have the same representation in the Senate as Wyoming, with only a half a million people), the 41 GOP senators who block legislation often represent only about a third of the national population, since Republicans disproportionately represent sparsely-populated states. Conversely, when “only” a bare majority of senators support a bill or support breaking a filibuster, those senators often represent two thirds or more of the American people. Filibuster abuse is an extreme form of "minority rule," undermining the majoritarianism that founders like Alexander Hamilton and James Madison so valued.

In essence, what has occurred in the Senate over the last 15 years is an extraordinary change to the constitutional structure of our government—without any actual constitutional amendment. The Constitution creates three "kill points" in the process of passing or rejecting federal legislation: the president, the House, and the Senate. Frequent filibuster abuse has created a fourth kill point: the Senate minority. Since it's necessary to run the gauntlet and overcome all four kill points to enact a law, it's no surprise that this has been an historically unproductive Congress.

So abolishing the filibuster for only non-Supreme Court appointments is not even half a loaf, even though it is a necessary step. The only way to return this filibuster-mad Senate to "majority rule" is to abolish the filibuster for legislation too.

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